Zooming towards a settlement
The COVID-19 outbreak and subsequent lockdown has forced virtually everyone to adapt many different aspects of their lives. Many people working from home have been finding inventive ways to ensure that they are able to continue to do their jobs. Lawyers are no exception to this. Straightforward aspects of personal injury claims that would not be given a second thought in normal times have presented difficult, technical challenges during the lockdown. In particular how settlement meetings can be conducted when it is impossible to get everybody together in the same room.
One such scenario presented itself in a recent case in the Spinal Injury Team. The case had been strongly defended by the Defendant and with trial set for June it was very important that the parties had an opportunity to meet to discuss the case to see whether a settlement could be reached. As a firm we have had a flexible working policy since 2003 allowing us to work from home, so we were well prepared for the lockdown and we were determined that a pandemic was not going to stop our client from having an opportunity to discuss settlement.
A Joint Settlement Meeting (“JSM”) had been agreed between the parties for April. In normal times, a JSM is most often held in barristers’ chambers and involves the claimant and defendant(s) discussing how – and for how much – to settle the case. In normal times, three rooms are generally used: one for the claimant and their representatives; one for the defendant and their representatives; and, one in which the negotiations take place. They usually start with one side making an offer, the other side discussing this in their private room and more often than not coming back with a counteroffer. The process of offer and counteroffer continues until the parties reach an agreed settlement figure. Or don’t, in which case the JSM finishes and the case proceeds to trial. While the negotiation part of the process was still possible in our case, clearly a face-to-face meeting was out of the question. Enter Zoom.
Zoom is a videoconferencing program that allows multiple users to meet remotely. It allows users to join a conference, all of whom are able to hear and see the others, speak and have a video of their face beamed to the other participants (should they wish). It is also secure: Only participants with a link and password for the meeting are able to listen to and see it. There are other videoconferencing platforms available – this not an advert for Zoom.
Several practical issues arose in preparation for the meeting. While the lawyers from both sides needed to be able to negotiate with each other, we also needed to be able to have regular, private contact with our client and his family throughout the day. Effectively, we wanted to recreate a virtual equivalent of the three rooms described above. We needed to be sure that the other side were not present during these conversations or able to listen in on them. This meant that we ran two separate meetings – one for the client and us to discuss the other side’s offer and what counter-offer to make, and one for the negotiations with the defendants. We worked out that we were able to end and then restart each meeting as needed throughout the day. When a round of negotiations between the lawyers finished we would text our client to let them know to re-join our private meeting.
In order to make sure that our client was comfortable using the technology, we had a number of meetings before the JSM itself. The first of these was a brief meeting to ensure that he was able to join and leave meetings and to be sure that he could participate effectively by hearing and being heard. The second meeting, the day before the JSM, was with our client’s barrister and, while mostly focussed on providing advice and discussing what to expect the following day, it was also an opportunity to make sure things were running smoothly and that the everyone was comfortable with the technology.
As detailed above, historically JSM’s, especially for catastrophic personal injury cases, have been conducted in person. This is despite the technology being around for years. So for a JSM to be carried out in this way, remotely, was a new thing for us. From our perspective as lawyers we found the benefits to be as follows:
In the situation where the parties cannot meet in person then conducting the JSM over the phone – by teleconference – has always been possible, but as a process it’s quite awkward. Each person speaking has to introduce themselves each time they speak so that the other participants know who they are. This is not an issue with Zoom as each participant’s name shows up under their video, which also lights up when they speak. Having private conversations with our client would also have presented technical difficulties and the whole process would have been much more complicated.
For our spinally injured client who was elderly, there was also the advantage of being able to remain at home during the meeting, removing the hassle, worry and pain associated with making a lengthy round trip to attend the meeting in person.
One of the main disadvantages to using Zoom for a JSM is that if more than one person speaks at a time, everything merges into one and is impossible to hear what anyone is saying. This means that there is an exaggerated sense of the turn-taking that happens in spontaneous, everyday speech, which slows things down.
It is also very difficult to divine what the person you are talking to may be thinking when only their face is visible on a small box on a screen. We tend to sense a huge amount of information from body language, which is difficult – if not impossible – using videoconferencing. This impacted everything from taking instructions from our client to making offers to the opposition and gauging their responses to them.
Part of my role as a junior lawyer was to make sure that the process ran smoothly, so from my perspective there was always a concern that the program would crash due to some unknown technical glitch, thereby bringing negotiations to a premature conclusion. Fortunately, that did not happen in our case, but it was nonetheless a concern. Having a backup option – whether another videoconferencing program or just phone – is a good idea.
Ultimately, I think it is unlikely videoconferencing will take off post-lockdown as a preferable alternative to meeting face-to-face for a JSM’s. That said, the most obvious benefit of having Zoom was that we were able to hold the JSM despite the lockdown. With more and more courts conducting remote hearings, it is possible that judges may want to see more of an effort being made by the parties to conduct JSM’s in this way in the future. In that regard, it could well be that the lockdown has let videoconferencing off the leash and a trend will emerge post-lockdown for all JSM’s to be held in this way.
The fact that our case settled during the lockdown was the best result we could have asked for given the circumstances. Our client, who is elderly and suffering from a serious spinal injury, has had the stresses and worries of litigation removed from his life, all without having to leave the comfort of his home; a result that would have been extremely difficult without Zoom.